Arizona Prosecutors Pretend 'ACAB' Is Gang Lingo To Hit Protesters With Felony Gang Charges

from the it-appears-at-least-some-of-these-cops-are-bastards-tho dept

This is how the law enforcement community has responded to nationwide complaints that they do their jobs poorly, violently, and abusively: by doing their jobs poorly, violently, and abusively.

The killing of George Floyd by a Minnesota police officer set off anti-police brutality protests across the nation. These protests were met with more police violence, with some of the violence singling out journalists, protesters, and legal observers. Things have since calmed down, but each new instance of police violence tends to result in another set of protests. Cops have proven they can't stop killing people or violating their rights so this cycle will continue in perpetuity.

Since it's impossible to calm the police down, it appears prosecutors and law enforcement agencies are shifting their focus into inflicting maximum pain on those exercising First Amendment rights. A truly ridiculous response to a recent protest in Arizona shows just how far the government is willing to go to stifle dissent. Maybe the ultimate goal isn't to end protests, but the end result of this Phoenix protest shows local law enforcement is willing to put their credibility on the line to punish citizens for being unhappy with the status quo.

On Oct. 17, about 20 people gathered in downtown Phoenix to march for justice for victims of police violence. The group was made up mostly of young people, including three 17-year-olds, an honors student from Arizona State University, and a Harvard student. The group marched down the streets of Phoenix chanting “Black lives matter.” Some of the protesters moved traffic cones and signs into the middle of the street. Some carried umbrellas, which protesters have used to protect themselves from tear gas and projectiles.

Eventually, police officers donning helmets and bulletproof vests closed in on the group. With a weapon drawn, an officer told them to get on the ground, which they did. Police ripped away the umbrellas. Dozens of officers surrounded the protesters, video footage shows. Police handcuffed the kneeling protesters, yanked them to their feet, and put them in the back of cruisers. Police used pepper bullets on at least one of the protesters.

This is only part of the disproportionate response. The major damage came after the arrests, when prosecutors added felony gang charges. Here's what prosecutors offered in support of these charges.

The street gang charges are based on the group’s common use of the phrase “all cops are bastards,” the fact they all dress in black, and carry umbrellas.

Police testified the group used the umbrellas to attack officers, conceal their activities, and further their criminal activities.

In essence, prosecutors are claiming "ACAB" is a gang. The acronym used by plenty of people who don't know or associate with each other is being presented as evidence of gang affiliation or activity. Depending on what specifics accompany these charges (whether its "participation" or merely "assisting"), these sentence enhancements can add up to ten years in prison to whatever else the protesters are convicted of. As The Appeal's report points out, one protester is being charged with felony aggravated assault of a police officer for allegedly digging his nails into the officer's thumb while being arrested.

And the Maricopa county prosecutor's office has continued to double-down on this brutal stupidity. It has refused to directly address the ridiculousness of pretending ACAB is a gang call sign and instead keep pointing people to its asterisk:

On October 27, 2020, a Maricopa County Grand Jury issued indictments on fifteen individuals for incidents that occurred on October 17, 2020. The indictment is for several crimes, including conspiracy to commit assault, riot, and assisting a criminal street gang. The attached Grand Jury Indictment outlines all charges.

While some will attempt to describe these defendants as “protestors,” a grand jury found probable cause to *charge this group with crimes, including the planning of violence.

It's just an accusation, folks.

*A charge in a crime is merely an accusation and the defendant is presumed innocent until and unless proven guilty.

See? Nothing stupid or politically-charged about turning BLM protesters carrying umbrellas into a street gang for indictment purposes.

A few months down the road and these charges remain on the books. Nothing has changed. The prosecutors are offering plea deals, but the "deals" involve pleading guilty to something that simply isn't true:

According to an attorney familiar with the case, the plea requires the defendants to plead guilty to two felony offenses, including the street gang charge.

Unlike some of the other charges the protesters are facing, these charges can't be expunged or downgraded to misdemeanors. This is permanent. And it's only there because cops and prosecutors found a handy way to severely punish people who are already unhappy with the actions of cops and prosecutors. There's nothing in here that's going to close the divide between these public servants and the people they serve. This is Maricopa law enforcement showing residents they're exactly who the residents thought they were: petty, vindictive people with far too much power.

Filed Under: acab, arizona, black lives matter, gangs, phoenix, police, police brutality, police violence, protestors

Portland's Facial Recognition Ban Won't Stop Private Citizens From Rolling Their Own Tech To ID Cops

from the how-the-turntables dept

Portland, Oregon recently passed a ban on facial recognition tech. Unlike bans passed elsewhere in the country, this one wasn't fucking around. The ban covered private companies as well as local government agencies. We've yet to see whether or not the courts will allow Portland to tell local businesses how to run their business, but the new ban has posed a novel problem not seen elsewhere. Residents trying to flip the script on law enforcement have discovered the new ban might impede their efforts. Kashmir Hill has the details on the unlikeliest outcome of blanket facial recognition bans.

When the city debated the ban, it asked residents for input. One resident had a very unique problem with the proposal.

During the time for public comments, a local man, Christopher Howell, said he had concerns about a blanket ban. He gave a surprising reason.

“I am involved with developing facial recognition to in fact use on Portland police officers, since they are not identifying themselves to the public,” Mr. Howell said. Over the summer, with the city seized by demonstrations against police violence, leaders of the department had told uniformed officers that they could tape over their name. Mr. Howell wanted to know: Would his use of facial recognition technology become illegal?

When cops resfuse to ID themselves while assaulting journalists and legal observers, why shouldn't citizens be able to deploy this controversial tech to put a name to the faces wielding the pepper spray and rubber bullets? It's a good question. And it's one Portland mayor Ted Wheeler answered after throwing a bit of undeserved shade at Christopher Howell:

Portland’s mayor, Ted Wheeler, told Mr. Howell that his project was “a little creepy,” but a lawyer for the city clarified that the bills would not apply to individuals.

Presumably, Wheeler's passage of the blanket ban means the mayor also thinks law enforcement's use of the tech is at least "a little creepy." But there's really nothing creepy about residents -- those on the lower end of the "inherent power" scale -- utilizing tech most often wielded by law enforcement against law enforcement. If officers think facial recognition use by civilians is a "little creepy," they're severely lacking in self-awareness. And if Portland cops don't want residents to turn their favorite tool against them, they could stop taping over their names when handling protests.

Howell's tech is self-developed. That puts him a bit behind the curve. But it also means it will work well within its limitations. Rather than search for faces in databases containing millions of photos, it only has to deal with photos of known local law enforcement officers. The possibility of false positives remains. But the worst case scenario is a misidentified officer, rather than the arrest of an innocent citizen. Howell has no power to take away the freedom of any police officer, even temporarily.

For all their touting of pervasive surveillance as "harmless" and "for the public good," governments sure get touchy when people start subjecting their employees to the same sort of eyeballing. Hill's report notes Hong Kong authorities arrested a protester for developing a tool to identify police officers using nothing more than other publicly-available photos. And in France, an artist who published 4,000 facial photos of police officers in his art exhibit removed them after being threatened with legal action by the Interior Minister.

Meanwhile, the Portland Police Department continues to defend its policy of hiding officers' names, under the theory that it's the powerless populace that presents the biggest threat to safety.

Derek Carmon, a public information officer at the Portland Police Bureau, said that “name tags were changed to personnel numbers during protests to help eliminate the doxxing of officers,” but that officers are required to wear name tags for “non-protest-related duties.”

Officers "dox" people all the time. Sometimes for "business" reasons. Other times for personal reasons. The government has a lot more personal information at its fingertips than the average citizen does, even four decades after the birth of the internet. There's an existential threat present here, but it wears badges and guns. For all the talk about the threat posed to cops, I'm unaware of any instance where a doxxed cop was awoken by citizens breaking in their door, loading the house up with flashbangs, holding them at gunpoint while the house is ransacked, and locking them up until a certain amount of money is paid to a third party. Spinning the tech to face the entities that deploy it most is just fair play.

Filed Under: cops, facial recognition, portland, protestors

Judge Says Memphis PD's Surveillance Of Protesters Violated 40-Year-Old Consent Decree

from the and-the-Constitution,-duh dept

Spying on people engaged in First Amendment-protected activity is a time-honored government tradition. The FBI, NSA, and CIA pioneered unconstitutional surveillance in the 1960s, leading eventually to the Church Committee's smackdown and a series of reforms aimed at preventing the casual abuse of surveillance powers.

It worked. A little. The DHS has picked up where the other agencies left off, portraying its surveillance of protesters as part of its national security purview. The NYPD has also done this regularly, violating both the Constitution and agreements it made following civil rights lawsuits.

The Memphis Police Department is another law enforcement agency that can't keep its nose out of the public's First Amendment business. A decision handed down by a Tennessee federal court will hopefully put an end to the Memphis PD's long-running violation of a 40-year-old consent decree.

The ACLU of Tennessee -- the other partner in the 1978 consent decree -- sued the City of Memphis over unconstitutional police activity. The decision [PDF] summarizes the numerous violations engaged in by Memphis law enforcement.

The Court finds that the ACLU-TN has shown by clear and convincing evidence that the City:

1) Conducted “political intelligence” as specifically defined and forbidden by the Consent Decree;

2) Operated the Office of Homeland Security for the purpose of political intelligence;

3) Intercepted electronic communications and infiltrated groups through the “Bob Smith” Facebook account;

4) Failed to familiarize MPD officers with the requirements of the Decree;

5) Did not establish an approval process for lawful investigations into criminal conduct that might incidentally reveal information implicating First Amendment rights;

6) Disseminated information obtained in the course of an investigation to individuals outside of law enforcement; and

7) Recorded the identities of protest attendees for the purpose of maintaining a record.

The fifth one on the list is especially interesting, given recent events. Last month, Facebook sent a letter to Mike Rallings, the director of the MPD, reminding him and his officers that its "real name" policy forbids impersonation and fake accounts. This isn't a practice limited to the Memphis PD, but it is the agency Facebook chose to call out publicly for violating its policies.

The 1978 Consent Decree laid this all out very clearly:

The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.

Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.

Despite this, the PD engaged in everything listed above, which clearly violates the limitations placed on it forty years ago. After deciding the ACLU has standing to pursue this lawsuit, the court says the PD cannot invoke its "public safety" mantra to excuse surveilling protesters, even if public safety was actually its true objective. Trying to dodge culpability by claiming forbidden surveillance is just good police work is a non-starter. The consent decree does not give the MPD the wiggle room it thinks it has.

The Consent Decree... is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation. The City has agreed that it will not engage in certain activity and is bound by that agreement.

The details of the violations run several pages. This is just the beginning of the MPD's wrongdoing.

MPD’s Real Time Crime Center (“RTCC”) conducted political intelligence when an officer searched its social media collator for all instances of the term “Black Lives Matter,” because the information gathered related to First Amendment Rights. MPD officers gathered and circulated social media posts about potential boycotts and boycotts are squarely within the protection of the First Amendment. MPD gathered information on journalists based on their associations with Black Lives Matter. (Testimony of Eddie Bass, ECF No. 138 at 5736-37; Ex. 120 “Below are three twitter accounts for two freelance journalist[s] and one Commercial Appeal journalist who apparently have the trust of the BLM protesters. These accounts seem to provide good real-time information during a protest event.”) MPD indexed information relating to the leadership of lawful protests. Major Lambert Ross ordered social media monitoring for a “BLM Rally” and a “Community Organizers Cookout.” Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.

In addition, the MPD converted its "Office of Homeland Security" into a clearinghouse for unconstitutional surveillance, gathering "political intelligence" on everyone from Black Lives Matters to pro-Palestinian activists to people pushing for a $15/hr minimum wage. The PD's "Bob Smith" Facebook account was used to track political activists and surveill their activities.

All of these violations stemmed from the MPD's failure to train its officers to comply with the consent decree. It's not so much of a failure as it is decades of just not caring. The PD dedicated one page to the decree in its "voluminous policy and procedural manual." Officers engaged in violations were often not aware they were violating the decree. This ignorance was also displayed by department supervisors and officials. As the court points out, this isn't a new problem. It's a continuous problem directly traceable to "inadequate training over a sustained period of time."

Here's what the city will be doing to remedy this. First, the PD will be forced to stop gathering "political intelligence" because there's no possible way for it to do this and still comply with the consent decree. It will also prevent any misunderstandings of what's forbidden by the consent decree. The PD will also need to train its command staff on decree compliance, quite possibly for the first time. Guidelines will be developed and put in place to govern the MPD's social media activities. All social media search terms used by officers or investigators will need to be turned over to the court every three months. And, as a capper, the city will be paying the ACLU's legal fees.

This may eventually upend some deep-seated problems in the department. Then again, the MPD has had 40 years to perfect its compliance with the consent decree and has steadily moved farther away from the crystal-clear restrictions it contained. If nothing else, a federal court has publicly aired the department's dirty laundry. This may not push the MPD into admitting and accepting it has a problem. But it does prevent it from remaining in denial.

Filed Under: consent decree, memphis, memphis police, protestors, surveillance

Court: Trump's 'Get 'Em Out' Order Directed At Campaign Rally Protesters Is Protected Speech

from the hope-he-remembers-how-much-1st-A-covers-the-next-time-he-issues-legal-threats dept

The Sixth Circuit Appeals Court has taken a look at some of President Trump's campaign trail trash talk and decided urging fans to remove protesters wasn't incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)

The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it. There's nothing wrong with that. It's the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to "get 'em out of here."

The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump's "get 'em out of here" directly caused them harm and violated the state of Kentucky's riot incitement law.

The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs' own statements to undo their assertions. But it's not happy with the lower court's decision to apply a less strict standard to Trump's wording to give the plaintiffs a better shot at hitting the mark with their state claims ("incitement to riot"). Applying the plausibility standard -- that Trump's "get 'em out of here" could have conceivably incited a riot -- makes no sense if the lower court wasn't willing to apply that same standard to words Trump said directly after that.

Focusing on the former statement, the district court held that it “implicitly” encouraged the use of violence. Id. at 727. Yet, even if “get ’em out of here,” standing alone, might be reasonably construed as implicitly encouraging unwanted physical touching, the charge here is “inciting to riot.” The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible—especially where any implication of incitement to riotous violence is explicitly negated by the accompanying words, “don’t hurt ’em.” If words have meaning, the admonition “don’t hurt ’em” cannot be reasonably construed as an urging to “hurt ’em.”

Even if the appeals court had decided Trump's words (but only some of them) didn't mean what they appeared to mean ("don't hurt 'em" = "hurt 'em"?), the president would still be able to walk away from this lawsuit intact. What Trump said during his campaign was not a threat nor any other speech standing outside the protections of the First Amendment.

Under the Brandenburg test, only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment. This looks like a close analogue for the kind of speech required to make out the charge of inciting to riot under Kentucky law. It follows that if we were to hold that plaintiffs’ allegations do state a plausible incitement-to-riot claim under Kentucky law, the claim might be expected to fall outside the protection of the First Amendment under the Brandenburg test. What comes with the constitutional standard, however, is an illustrative body of case law. And what this case law makes clear is that, even if plaintiffs’ allegations could be deemed to make out a plausible claim for incitement to riot under Kentucky law, the First Amendment would not permit prosecution of the claim.

As the court notes, what Trump said may have been taken by attendees as an invitation to inflict violence. Trump may even have hoped some would act on these urges even with the tossed-off addition of "don't hurt 'em." But what he said was Constitutionally protected, no matter how unsavory or subjectively threatening the expelled protesters might have felt his statements were. For the court to step in and declare these words illegal would be a step too far.

[A]s a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. The First Amendment demands governmental tolerance of speech, in the name of freedom…

The court isn't there to second-guess the speaker's intent. It's there to weigh the Constitutionality of the statements. "Get 'em out of here" isn't capable of directly inciting violence. The government has steered clear of punishing far worse speech in far more volatile situations. The court says it's not willing to cross that line, especially not when the perceived incitement was immediately negated by the next words out of Trump's mouth.

Filed Under: donald trump, first amendment, free speech, henry brosseau, incitement, kashiya nwanguma, molly shah, protestors, rallies

NYPD Baffled By Tech Advances Like Laptops And WiFi

from the with-great-power-comes-a-whole-lot-of-complaining dept

It's over. The tech kids have won. Shut down the NYPD's counterterrorism unit and brace yourselves for a crimewave of Biblical proportions.

Tech-savvy anarchists ran rings around the NYPD during last week’s Ferguson-related protests — and cops are now on edge over what the renegades may be able to pull off after a ruling in the Eric Garner case.

The overt message is that the NYPD can't keep up with decentralized opposition. That's right on top. The underlying message is that the NYPD still hasn't stopped sending its uninvited officers to various locales to gather intelligence/annoy the locals/rack up per diem charges.

Yes. The NYPD sent detectives to gather intel at the Ferguson protests. These are the takeaways from the NYPD's bumptious interlopers. The NYPD can't stop anything. Protesters are "running rings" around the technologically inept force -- one of the largest and most highly-trained in the nation.

Cue the whining:

A “technology gap” … favors the activists, many of whom have the newest electronic gear, sources said.

“A lot of these anarchists are from the Occupy Wall Street group. They are little rich kids, little techie brats,’’ a source said.

“They get their money from Mommy and Daddy. And they travel from the West Coast to the East Coast and everywhere in between to disrupt events that involve corporate America, world summits, civil rights and especially those that involve law enforcement.”

“They have their little MacBook Air computers, their Wi-Fi, their smartphones, and they’re off to the races. We’re reacting to these situations, which means we are not fully in control of them,” the source said.

Can you feel the resentment? These cops (all unnamed) hate the fact that they're being outwitted by a class of people they obviously feel superior to. There's no "technology gap" here. The cops have laptops, WiFi, smartphones and access to the same social media services. It's just that one group knows how use these tools to coordinate efforts -- and it isn't the group with millions of dollars and years of training behind them.

If this is how easily the nation's top police department is tripped up by "new" tech like Airbooks and WiFi, it should just call it a day and disband its (mostly self-) touted counterterrorism unit, as Marcy Wheeler points out.

If I were a NYC taxpayer, I’d call for the CT squad to be shut down right away. Partly because of the insubordination in the face of people peacefully protesting. But just as significantly, because of this claimed helplessness in the face of a far easier target than they’re ostensibly paid to pursue.

Or maybe give the NYPD the benefit of the doubt. Surely, it can adapt to meet the challenges of this connected era? The unnamed officers state their concern about possible (now definite) protests following the grand jury's decision in Eric Garner's death at the hands of a plainclothes police officer (spoiler alert: no indictment), but they have a finely-honed plan in place to disrupt the disrupters.

“We’re expecting strong reaction and demonstrations when the decision comes down,” one source said.

Another source said: “The cops on standby will be in riot gear. That means helmets and sticks.”

If you can't beat 'em, beat 'em.

Filed Under: nypd, police, protestors, technology

Minneapolis Police Filming Their Own Work To Show Critics

from the good-move dept

We've had tons of stories about police arresting people for filming them. And we've seen plenty of other stories about mobile phone cameras being used to document and share evidence of police overreacting (especially at various protest scenes). However, the folks at On The Media had a great story recently about how the police in Minnesota are filming themselves when they deal with protests and then releasing the raw video footage in response to footage from others.


In the case above, it involved Occupy protestors using video footage of police arresting journalists. However, the police's own footage put the situation in a bit more context, including showing the police clearly reading out warnings to the crowd that if they don't help police remove obstructions in the plaza, that they will need to take enforcement action. Does this absolve the actions of the police? Perhaps not, though it may depend on where you sit. However, it is a really interesting strategy, and one that I think actually reflects a very positive development. Rather than hiding from cameras, the police can (and should) use cameras to their own advantage as well.

Amusingly, however, in the story, the police chief notes that the film in question was done by crime scene videographers, who are a little too focused on closeup shots, not knowing quite how to take wide shots that might show the scene in a bit more detail to provide additional context.

Of course, the police chief, Janee Harteau, isn't fully enlightened. While she does say that officers should always assume they're being filmed (and mentions permanent cameras in the city, as well as squad car cameras), she still complains that people with mobile phone cameras sometimes "interfere with an officer's ability to do their job." She doesn't really elaborate, beyond saying that police have a job to do in protecting the public. She does say that "the officer's word doesn't mean as much as it used to" if there isn't a video. I'm not sure why that's a bad thing. If there isn't more evidence, isn't it only proper to give the testimony less weight? Either way, I do think the overall idea of police filming themselves (and releasing that video) is a definite step in the right direction, and one that I hope other police departments start using.

Filed Under: janee harteau, minneapolis, minnesota, occupy, police, protestors